40 N.W. 565 (Minn. 1888), Mueller v. Jackson

• Docket Number: .
• Date: 22 November 1888
• Citation: 40 N.W. 565,39 Minn. 431
• Parties: Agnes Mueller and another v. Sidney D. Jackson and others
• Court: Minnesota Supreme Court

Page 565

40 N.W. 565 (Minn. 1888)

39 Minn. 431

Agnes Mueller and another

v.

Sidney D. Jackson and others

Supreme Court of Minnesota

November 22, 1888

Appeal by plaintiffs from a judgment of the district court for Dakota county, and from an order by Crosby, J., refusing a new trial.

Order and judgment affirmed.

E. St. Julien Cox and W. H. Adams, for appellants.

John B. & W. H. Sanborn, for respondents.

OPINION

Page 566

[39 Minn. 432] Mitchell, J.

The complaint was the ordinary one in an action under the statute to determine adverse claims to real property in the actual possession of the plaintiffs. The answer alleged title in the defendants, and demanded judgment for the possession; being thus, in effect, a complaint in ejectment. Eastman v. Linn, 20 Minn. 387, (433.) The reply alleged facts entitling the plaintiffs to compensation for improvements, etc., under the "occupying claimants' act," in case the title should be found in defendants. The plaintiffs, in their case in chief, to prove title in themselves, (which was the only allegation of the complaint denied in the answer,) offered in evidence "a state assignment certificate," (Ex. A.) executed January 14, 1879, purporting to assign to Jenzen (plaintiffs' grantor) all the interest of the state acquired at a sale of the premises on September 20, 1878, under a judgment rendered August 14, 1878, for the taxes of 1877.

This was properly excluded by the court, for the reason that it was not evidence of title, unless accompanied by proof that notice of the expiration of the time of redemption had been served, the burden of proving which was upon the plaintiffs. Gen. St. 1878, c. 11. § 85; Nelson v. Central Land Co., 35 Minn. 408, (29 N.W. 121;) State v. Smith, 36 Minn. 456, (32 N.W. 174.)

Page 567

The affidavit of publication of notice of the expiration of redemption, (Ex. B.) subsequently offered, was also properly excluded, for various reasons: First, because it did not appear that it was addressed to the person in whose name the land was assessed; second, there was no evidence that it had ever been delivered to the sheriff for service, or that the sheriff had ever attempted to serve it, or had ever made any return thereon to the county auditor. Gen. St. 1878, c. 11, § 121.

The "omnibus" offer made by plaintiffs, referred to in their third and fourth assignments of error, was properly rejected, for the following reasons: It had no tendency to...